A short primer on U.S. federalism and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prepared at the request of
the US Human Rights Network by the Society of American Law Teachers144
General From the perspective of international law, the United States, like any other State, is bound as a nation when it ratifies treaties, and is subject to customary international law and “general principles of law recognized by civilized nations.”145
These international law obligations bind the United States, whatever its internal governing structure.146 However, the United States has repeatedly asserted, both on the international plane as a political-legal position and as a matter of domestic law, that these international obligations are subsidiary to other United States law (that is, federal law, and at least by some state authorities, state law). Moreover, frequently these international obligations are effectively ignored entirely, even when the U.S. concedes that it is violating international law in doing so. The U.S. approach to international law might be termed the “United States foreign relations law vision.” This vision is in sharp contrast to the positions of the vast majority of developed democracies with respect to the legal force of international law on their countries and their domestic legal systems.
This U.S. foreign relations law vision permeates the United States statements to the United Nations Committee on the Elimination of Racial Discrimination (CERD) and about the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The difference between most countries’ view of the legal effect of international law and the U.S. foreign relations law vision affects the dialogue of the CERD with the United States, and should inform both understanding of the U.S. presentation, and, in turn, analysis of the United States compliance with its international law obligations.
Federalism in the United States A further complexity is that the assignment of what international law would term the jurisdiction to prescribe, enforce and adjudicate inherent in any State is done in the United States through a constitutional structure of federalism (a federal government that is sovereign, and state governments of 50 states that are also sovereign) and separation of powers (a federal government made up of the branches of the Presidency, Congress, and the Judiciary and each of the structures of government of the 50 states). The idea behind this constitutional structure was to provide a double security to the rights of the people. As was described by one of the key framers of the Constitution:
“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”147 International Law in the United States International law is incorporated in U.S. domestic law in complex ways. International treaties and, traditionally, customary international law and general principles as U.S. federal law are supreme over the law of the states.148 For treaties, the Constitution makes it crystal clear that they are part of the “supreme law” of the land, although a Supreme Court opinion early in the U.S. history created the doctrine of “non-self-executing” treaties,149 which requires Congressional action in order for “non-self-executing treaties” to become law. A self-executing treaty is a treaty that becomes enforceable in U.S. courts upon ratification. This contrasts with a non-self-executing treaty, which becomes enforceable in U.S. courts through the implementation of legislation following ratification. Thus, the U.S. evolved from a system where international law was part and parcel of domestic U.S. law (that is, what is termed a “monist” system) into a “hybrid” system, which incorporates elements of a monist and a dualist system (that is, a dualist system means international law is incorporated into domestic law through domestic implementing legislation). This being said, the U.S. government has progressively leaned toward the “dualist” system, and the U.S. now much more resembles the British form of a dualist approach to international law than the original monist approach provided in the text of the Constitution. There exists considerable uncertainty whether a particular treaty is “self-executing” or not, with almost no human rights treaties considered “self-executing.” There is significant uncertainty as to whether any given treaty is or is not self-executing, until the Supreme Court determines the status of the treaty on a case-by-case basis.150 If a treaty is considered non-self-executing, domestic implementation is the task of Congress.151 The United States frequently argues, often opportunistically, as it has with the ICERD, that the treaty is both non-self-executing and that there is no need for implementing legislation because the Constitution, the laws of the United States, and possibly the 50 states sufficiently implement the treaty obligation. Similarly, in the case of the International Covenant on Civil and Political Rights, this U.S. position has simply been a reason for avoiding domestic implementation of the treaty obligations. The place of customary international law and general principles in U.S. domestic law depends to some extent on whether there is a treaty or a controlling executive or legislative act or judicial decision that contravenes the customary international norm or general principle of international law.152 If a treaty or other international obligation conflicts with substantive rights expressed in the Bill of Rights of the U.S. Constitution, that international obligation will be given no effect as a matter of U.S. domestic law. 153 Inconsistency of International Law or Agreement and Domestic Law: Law of the United States As detailed in the 3rd Restatement of Foreign Relations Law at Section 115, the U.S. approach to inconsistency of international law or agreement and domestic law is:
(1) (a) An act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled.
(b) That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.
(2) A provision of a treaty of the United States that becomes effective as law of the United States supersedes as domestic law any inconsistent preexisting provision of a law or treaty of the United States.
(3) A rule of international law or a provision of an international agreement of the United States will not be given effect as law in the United States if it is inconsistent with the United States Constitution.154
This particular United States foreign relations law vision is all the more perplexing since the Supreme Court had decided, early in the country’s history, that domestic courts should make every possible effort to reconcile domestic and international law. As recently noted by the U.S. Department of State Legal Advisor:
“Most famously, the Supreme Court has long held that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.'' Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (the “Charming Betsy doctrine”). In the area of treaty interpretation, the Supreme Court has long noted that it is "bound to observe [treaties] with the most scrupulous good faith.'' The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 68 (1821); see also Chew Heong v. United States, 112 U.S. 536, 540 (1884) ("Treaties of every kind ... are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.'') (internal quotation marks omitted). The Court has also repeatedly reaffirmed that it gives "considerable weight" in interpreting treaties to the "opinions of our sister signatories." Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010).155 Nonetheless, this binding precedent is insufficiently invoked by U.S. domestic courts.
International Law in Domestic law: Federalism.
As noted in the U.S. reservations, understandings and declarations to the ICERD, in addition to stating the treaty being non-self-executing (with implications in internal law described above) the United States states:
“[T]he United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall, as necessary, take appropriate measures to ensure the fulfilment of this Convention.”156 The federal government is a government of limited jurisdiction with federal law (the Constitution, federal laws and treaties and, traditionally, customary international law and general principles157) being the supreme law of the land, while each of the states is considered a government of general jurisdiction. U.S. state responses to international law can best be described as divergent, with some state courts taking non-self-executing treaties into account out of an abundance of caution, and pursuant to the Charming Betsy doctrine discussed supra, as they are obligations dictated by the Constitution’s Supremacy Clause.158 Other states do not consider themselves bound by non-self-executing treaties or International Court of Justice decisions in the absence of implementing legislation.159 Some states have attempted to ban the application of international law (viewed as foreign law) in their courts, finding such actions (incorrectly) to be irrelevant to interpretation of U.S. law.160 Conclusion The United States has undertaken obligations in international law in the form of treaties, customary international law, and general principles. How those international law obligations become part of U.S. domestic law is complex. Divergent reactions to international law by U.S. courts as a result of the particular U.S. foreign relations law vision are rampant at the state and federal level. The current political climate has made U.S. respect for international law even more contested. Whereas there is no doubt that the United States remains subject to specific international law obligations such as the ICERD, its willingness, or ability, to implement those obligations remains uncertain.
1 For more than forty years, the Society of American Law Teachers (SALT) has been one of the United States' largest membership organizations for teachers of law. SALT has a three-part mission: 1) creating and maintaining a community of progressive and caring law professors dedicated to making a difference through the power of law; 2) promoting the use of many forms and innovative styles of teaching to make our classrooms more inclusive; and 3) challenging faculty and students to develop legal institutions with greater equality, justice, and excellence. We appreciate the invaluable research assistance provided by Haley Etchison, Jesse Medina, Matthew Talley, Aradhana Tiwan, and Niyah Walters.
2 SALT is well aware of issues of inter-sectionality/multi-dimensionality with regard to combinations of race, gender, disabilities, national origin, and sexual orientation and other status that may further exacerbate the experience of racial discrimination in the context of the legal profession. It is sometimes difficult to tease out whether a particular form of discrimination is primarily of a racial nature or capture the experience of a combination of discrimination along different vectors but oppressing a single person. To the extent the CERD can show some sensitivity in its review of the United States to these types of what might be called multi-vector racial discrimination that may overlap with concerns under other human rights treaties or customary international law, it assures a comprehension of the plenitude of the oppression confronted by racial minorities.
Although ICERD focuses on the prevention, prohibition, and elimination of all forms of racial discrimination and xenophobia, both the CERD and U.S. legal scholars have recognized the significance of multiple forms of discrimination. For example, CERD has recognized compound discrimination on the basis of race and gender (General Recommendation 25, Gender Related Dimensions of Racial Discrimination (Fifty-sixth session, 2000), U.N. Doc. A/55/18, annex V at 152 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 214 (2003).) and has clarified that the treaty does not permit racial discrimination and other violations of human rights against non-citizens (General Recommendation 30, Discrimination against Non-citizens (Sixty-fourth session, 2004), U.N. Doc. CERD/C/64/Misc.11/rev.3 (2004). African-American lawyer and diplomat Gay McDougall, a former member of the CERD, took the lead in elaborating on the implications of complex racial identities. Language in the most recently adopted core international human rights treaty, the Convention on the Rights of Persons with Disabilities, explicitly recognized, and rejects the severe effects compound discrimination can have on individuals and groups. The drafters of the CERD were motivated in part by the desire to end compound discrimination:
"p. Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status,…" (Preamble, paragraph p.)
Legal education and the broader community benefit from other forms of diversity among people of color, such as class differences, gender, sexual orientation, language, ethnicity, disability, and religious differences. Law students and legal educators of color are also men, women, transgender persons, persons with disabilities, and come from both working-class and elite backgrounds. The diversity of backgrounds and experiences and perspectives among law students and law teachers of color enriches legal scholarship and training and contributes to broader efforts to end racial discrimination. Unfortunately, however, others see the multidimensionality among people of color as reason to further compound discrimination and exclusion. (See, e.g., Presumed Incompetent: The Intersections of Race and Class for Women in Academia, Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González, Angela P. Harris, Eds., (University of Utah Press, 2013) ((perspectives of women of color in higher education)). There is a significant need for further study in this area, since disaggregated data is often unavailable. It could be difficult to distinguish, for example, the extent to which a Latina law professor who has a visible disability experiences discrimination on the basis of her ethnicity, gender, disability, or all three.
3 In Annex A we provide a short primer on U.S. federalism and the ICERD prepared at the request of the U.S. Human Rights Network.
4 Although this term originated in a country-specific context to refer to the systematic racial segregation policies of South Africa and Rhodesia, it has also developed into a more broadly used term, as seen by its use in the UN World Conference Against Racism Declaration and the UN Convention Against Apartheid.
5 This holistic approach, starting with pre-kindergarten, to examine the legal profession is consistent with the approach of the American Bar Association Council for Racial and Ethnic Diversity in the Educational Pipeline. See American Bar Association Council for Racial and Ethnic Diversity in the Educational Pipeline, Achieving Diversity in the Legal Profession through the Educational Pipeline, 35 (August 2013), available at http://www.americanbar.
org/content/dam/aba/administrative/diversity_pipeline/rev_diversity_in_educational_pipeline_slides_oct2013.authcheckdam.pdf [hereafter “Achieving Diversity”].
6 See Roy L. Brooks, Integration or Separation: A strategy for Racial Equality,9 (1996); see also Cummings v. Bd. of Educ. of Richmond Cnty., 175 U.S. 528, 537 (1899). In the early 1950s, the following seventeen states required racial segregation in public schools: Alabama, Arkansas, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. See National Park Service, last accessed on Aug. 5, 2012, available at http://www.nps.gov/nr/twhp/wwwlps/lessons/121brown/
121locate1.htm (citing Kluger, Richard, Simple Justice (New York Vintage Books, 1977), 327. Four other states, Arizona, Kansas, New Mexico, and Wyoming permitted segregation in public schools if local communities wanted it. See National Park Service, last accessed on Aug. 5, 2012, available at http://www.nps.gov/nr/twhp/
wwwlps/lessons/121brown/121locate1.htm (citing Jeffrey A. Raffel, Historical Dictionary of School Segregation and Desegregation: The American Experience, 86 (Westport, CT: Greenwood Press, 1998)).
Plessy v. Ferguson, 163, U.S. 537, 545 (1896) (talking about the purposes of public transportation).
John Yinger, Closed Doors, Opportunities Lost: The Continuing Costs of Housing Discrimination, 109 (1995) (“Black and Hispanic households are far more likely than white households to live in overcrowded conditions, to live in housing with severe or moderate structural problems, or to devote an excessive share of their income toward housing). See also The Seattle Open Housing Campaign, 1959-1968, available at https://www.seattle.gov/
CityArchives/Exhibits/Housing/ (explaining that until 1968, it was legal to discriminate against minorities in Seattle when renting apartments or selling real estate). Measures that were used to prevent black families from living in white neighborhoods was the enforcement of restrictive covenants in addition to realtors unofficially agreeing not to show houses in white neighborhoods to blacks. One restrictive covenant provided, “4. No person or persons of Asiatic, African or Negro blood, lineage or extraction, shall be permitted to occupy a portion of said property, or any building thereon; except domestic servant or servants may be actually and in good faith employed by white occupants of such premises.” Deeds, Vol. 1450, page 348, April 1, 1929. King County Recorder’s Office.
See, e.g., http://miami.cbslocal.com/2011/07/04/ft-lauderdale-remembers-wade-ins-which-ended-beach-segregation/ (Jul. 4, 2011) (“Ft. Lauderdale officials will celebrate this Fourth of July holiday by marking the 50th anniversary of an event which led to the desegregation of the city’s beach.”)
See Washington v. Davis, 426 U.S. 229 (1976) (holding that a law is not unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose when unsuccessful black applicants for employment as police officers by the District of Columbia brought suit claiming that the police department’s recruiting procedures, including a written personnel test which was racially discriminatory); see generally Tricia McTague et al., Organizational Approach to Understanding Sex and Race Segregation in U.S. Workplaces, 87 Soc. F. 1499 (2008-2009) (doing thorough analysis of race segregation and its institutionalization in private sector workplace in the post-Civil Rights Act era based on data collected by the U.S. Equal Employment Opportunity Commission from 1966 through 2000).
Code, City of Miami Beach, Florida, Ordinance No. 2012-3775, available at http://library.municode.com/index.
12 Loving v. Virginia, 388 U.S. 1, 2–5 (1967); Loving v. Com., 206 Va. 924, 927 (1965), reversed by Loving v. Virginia, 388 U.S. 1 (“[A] state is empowered to forbid marriages between persons of African descent and persons of other races or descents . . . there is an overriding state interest in institution of marriage.”).
13 See Carlton Waterhouse, Avoiding Another Step in a Series of Unfortunate Legal Events: A Consideration of Black Life Under American Law from 1619 to 1972 and a Challenge to Prevailing Notions of Legally Based Reparations, 26 B.C. Third World L.J. 207, 237–40 (2006) (reviewing development in the different states of black men’s political rights since the 18th century and until the Voting Rights Act of 1965 as well as describing the pervasive and recurrent abridgment of such rights during that period); see also Gabriel J. Chin, The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L.L. Rev. 65 (2008) (positing that although African-Americans were a minority nationally, they constituted majorities in the some states but, as a result of unconstitutional acts carried out by conservative minorities, they were deprived of their democratic rights).
14 See, e.g., http://www.ferris.edu/jimcrow/what.htm. (“In 1935, Oklahoma prohibited blacks and whites from boating together because it would imply social equality.”)
15 U.S. v. Boyd, 327 F.Supp. 998, 999–102 (S.D. Ga. 1970) (requiring a barbeque restaurant in Georgia utilize front dining for all patrons, including white and black customers).
16 Martin Luther King, Jr. National Historic Site, available at http://www.nps.gov/malu/forteachers/
See, e.g., http://www.ferris.edu/jimcrow/what.htm.; Martin Luther King, Jr. National Historic Site, http://www.nps.gov/malu/forteachers/jim_crow_laws.htm.
See, e.g., http://www.ferris.edu/jimcrow/what.htm; Martin Luther King, Jr. National Historic Site, http://www.nps.gov/malu/forteachers/jim_crow_laws.htm.
Martin Luther King, Jr. National Historic Site, available at http://www.nps.gov/malu/forteachers/
See, e.g., http://www.ferris.edu/jimcrow/what.htm; Martin Luther King, Jr. National Historic Site, http://www.nps.gov/malu/forteachers/jim_crow_laws.htm
Rachel F. Moran, Elusive Nature of Discrimination, 55 Stan. L. Rev. 2365, 2368 (2003) (explaining that even in 1990, judges consistently set higher bail for nonwhite defendants than for comparable white defendants) (citing Ian Ayres, Pervasive Prejudice?: Unconventional Evidence of Race and Gender Discrimination, 239–40, 263–73 (2003)).
See, e.g., http://www.ferris.edu/jimcrow/what.htm.Martin Luther King, Jr. National Historic Site, http://www.nps.gov/malu/forteachers/jim_crow_laws.htm.
National Park Service, Martin Luther King Jr. National Historic Site, “Jim Crow Laws” n.d. (“Books shall not be interchangeable between the white and colored schools, but shall continue to be used by the race first using them.”). Available at http://www.nps.gov/malu/forteachers/jim_crow_laws.htm. Last accessed on June 25, 2014.
See Gerene L. Freeman, What about my 40 Acres and a Mule?, Yale-New Haven Teachers Institute, available at http://www.yale.edu/ynhti/curriculum/units/1994/4/94.04.01.x.html. On February 5, 1866, the Freemen’s Bureau Act was defeated by Congress by a vote of 126 to 36. Lands which had been distributed to freedmen were reclaimed and returned to previous owners. (citing Martin Luther King, Why We Can’t Wait, New York, NY. Harper & Row Publishers, 1963). See also Martin Luther King, Jr. National Historic Site, supra note 17. The victorious Northern states’ interests played a significant role in the failure of the federal government to effectively provide land for freedmen. After the Civil War, the industrial Northern states expected to expand the cotton industry and regain prominence in the international market. Freed slaves viewed cotton culture as a “badge of slavery” and thus, many of them were not willing to cultivate cotton, preferring cash agricultural products they could directly sell in the domestic market. Id.
See Charles J. Ogletree Jr., From Brown to Tulsa: Defining Our Own Future,47 How. L.J. 499, 502.
Jennifer T. Manion, Cultivating Farmworker Injustice: The Resurgence of Sharecropping, 62 Ohio St. L.J. 1665, 1668 (2001).
Id. at 1667.
Id. at 1671.
See Douglas L. Colbert, Challenging the Challenge: Thirteen Amendment as a Prohibition Against the Racial Use of Peremptory Challenges, 76 Cornell L. Rev. 1, 39–43 (1990).
William Cohen, Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis, 31, 47, 53 (1976).
Id. at 45.
Id. at 47, 51, 53.
Id. at 53.
See, e.g., http://www.motherjones.com/politics/2008/07/probation-profiteers. (“Middle Georgia Community Probation Services is one of 37 companies to whom local governments have outsourced the supervision of misdemeanor and traffic offenders. It's been billed as a way to save millions of dollars for Georgia and at least nine other states where private probation is used. But to its critics, the system looks more like a way to milk scarce dollars from the poorest of the poor. Here's how it works: If you have enough money to pay your fine the day you go to court for, say, a speeding ticket, you can usually avoid probation. But those who can't scrape up a few hundred dollars—and nearly 28 percent of America’s residents live below the poverty line—must pay their fine, as well as at least $35 in monthly supervision fees to a private company, in weekly or biweekly installments over a period of three months to a year. By the time their term is over, they may have paid more than twice what the judge ordered.”) See also http://www.cnn.com/2003/US/Southwest/10/29/chain.gang.reut/. (“Sheriff Runs Female Chain Gang” where female inmates, subject to harsh jail conditions may volunteer for chain gang duty to get out of lock-down. Four prisoners are shut in a cell 8 by 12 square feet 23 hours a day. If they spend 30 days on the chain gang, picking up trash, weeding or burying bodies, they can get out of the punishment cells and back to the tents under the blazing Arizona sun in temperatures which sometimes exceeded 120 degrees.)
Roy Beck, The Case Against Immigration: On the Backs of Black Americans: The Past, Minnesotans For Sustainability(1996), available at http://www.mnforsustain.org/immg_beck_r_case_against_immigration
Waterhouse, supra note 13, at 245 (citing Joe R. Feagin, Racist America: Roots, Current Realities and Future Reparations (2000)).
Beck, supra note 36.
Waterhouse, supra note 13, at 245.
334 U.S. 1 (1948) (holding that state court enforcement of restrictive covenants which has as their purpose the exclusion of persons of designated race or color from ownership or occupancy of real property could not be justified on ground that there were no denial of equal protection of law because state courts stand ready to enforce restrictive covenants excluding white persons from ownership or occupancy of property covered by such agreements.).
See generally Feagin, supra note 35, at 179–85.
See Philip Rubio, A History of Affirmative Action: 1619-2000,82 (2001).
Feagin, supra note 37, at 181–82; John Kimble, Insuring Inequality: The Role of the Federal Housing Administration in the Urban Ghettoization of African Americans, 32 Law & Soc. Inquiry 399, 400 (2007).
See David E. Bernstein, Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (2001).
Feagin, supra note 37, at 181–82.
Id.; see also Leland Ware, Charters, Choice, and Resegregation, 11 Del. L. Rev. 1, 15 (2009).
Jim Crow Laws, National Park Service, available at http://www.nps.gov/malu/forteachers/jim_crow_laws.htm (citing various state laws prohibiting intermarriage between White and Black Americans in states including, inter alia Arizona, Florida, Georgia, Maryland, Mississippi, Missouri, Wyoming, providing separate education for White Americans and Black Americans in Texas, New Mexico, Mississippi, and Florida.
Some of the key findings with respect to race were: (1) Black students represent 18% of preschool enrollment but 42% of students suspended once, and 48% of the students suspended more than once. (2) Access to advanced courses. Eighty-one percent (81%) of Asian-American high school students and 71% of white high school students attend high schools where the full range of math and science courses are offered (Algebra I, geometry, Algebra II, calculus, biology, chemistry, physics). However, less than half of Indigenous high school students have access to the full range of math and science courses in their high school. Black students (57%), Latino students (67%), students with disabilities (63%), and English language learner students (65%) also have less access to the full range of courses. (3) The 2011-2012 release shows that access to preschool programs is not a reality for much of the country. In addition, students of color are suspended more often than white students, and black and Latino students are significantly more likely to have teachers with less experience who aren't paid as much as their colleagues in other schools. Expansive Survey of America's Public Schools Reveals Troubling Racial Disparities, March 21, 2014, U.S. Department of Education Office of Civil Rights Press Release available at http://www.ed.gov/news/press-releases/expansive-survey-americas-public-schools-reveals-troubling-racial-disparities
“Put simply, the market penalizes integration: The higher the percentage of blacks in the neighborhood, the less the home is worth, even when researchers control for age, social class, household structure, and geography.” Dorothy Brown, How Home Ownership Keeps Blacks Poorer than Whites, Forbes.com, December 10, 2012, available at http://www.forbes.com/sites/forbesleadershipforum/2012/12/10/how-home-ownership-keeps-blacks-poorer-than-whites/.
“There are estimated to be over 6,000 charter schools serving about 2.3 million students in the 2012-2013 school year. This represents an 80 percent increase in the number of students enrolled in charter schools since..2009,” National Charter School Study 2013, Center for Research on Education Outcomes, Stanford University. “(o)n the update of the 2009 16 state analysis) Black charter students, meanwhile, had lower learning gains than their TPS (traditional public school) counterparts in 2009 but similar learning gains to TPS by 2013. Learning gains for Hispanic students were slightly improved in 2013 for both reading and math. However, learning gains for Hispanic students are still lower at charters in the 16 states than at TPS.” Id. at 44. (On the expanded 27 state analysis) “Based on our analyses, we found 25 percent of charter schools had significantly stronger growth than their TPS counterparts in reading, 56 percent were not significantly different and 19 percent of charter schools had weaker growth. In math, the results show that 29 percent of charter schools had stronger growth than their TPS counterparts, 40 percent had growth that was not significantly different, and 31 percent had weaker growth. These results are an improvement over those in the 2009 report, where we found that only 17 percent of charters outperformed their TPS market in math while 37 percent performed worse.” Id. at 56. Moreover, the true intent behind these movements is of great concern to minority communities. See, Valerie Strauss, Ed school dean: Urban school reform is really about land development (not kids), The Washington Post, May 28, 2013, available at http://m.washingtonpost.com/blogs/answer-sheet/wp/2013/05/28/ed-school-dean-urban-school-reform-is-really-about-land-development-not-kids/; Further weakening of the financial power of public sector unions occurred on June 30, 2014 when the Supreme Court in a 5-4 decision on First Amendment constitutional grounds limited the power of public sector unions to collect agency fees from non-union member partial public employees for the costs for the union of representing said employees in collective bargaining negotiations with the state. See Harris v. Quinn, 573 U. S. ____ (Slip Opinion 2014) available at http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf
Article 11. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.
See George Farkas, Racial Disparities and Discrimination in Education: What Do We know, How Do We Know It, and What Do We Need to Know? 105 Teacher’s College Record 1119, 1119-1146 (2003).
Article 5In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
. . .
(c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
(d) Other civil rights, in particular:
(e) Economic, social and cultural rights, in particular:
(v) The right to education and training;
See Farkas, supra note 53, at 1134. (“School districts with relatively high concentrations of Latino and African American families tend also to be districts with relatively weak tax bases and lower educational expenditures per pupil.”).
411 US 1 (1973).
Id. at 16 (“Substantial inter-district disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause.”)
551 U.S. 701 (2007).
The two districts involved in the case, the Seattle, Washington school district and the Louisville, Kentucky school district, had both been previously de jure segregated, with Louisville under a court order to desegregate and Seattle under threat of a court order. In Seattle, segregation was effectuated through school board policies and actions, Id. (Breyer, J., dissenting), at 812, whereas in Louisville segregation was effectuated through state law. Id. at 814.
Id. at 861-62.
61Id. at 868.
See Erica Frankenberg, Genevieve Siegel-Hawley, & Jia Wang, Choice Without Equity: Charter School Segregation and the Need for Civil Rights Standards, UCLA CIVIL RIGHTS PROJECT, 31 (Jan. 2010), available at http:// civilrightsproject.ucla.edu/research/k-12-education/integration-and-diversity/choice-without-equity-2009-report/frankenberg-choices-without-equity-2010.pdf (“Charter schools in some of the most diverse states may be as [sic] a less diverse alternative for white students.”); James E. Ryan, Schools, Race, and Money, 109 Yale L.J. 249, 283 (1999); See also Danielle Holley-Walker, A New Era for Desegregation, 28 Ga. St. U. L. Rev. 423, 451 (“Some suburban opponents [of private school voucher programs] fear that vouchers will allow minority and poor children to enter their schools.Due to their limited adoption and use, school vouchers will not likely promote increased racial integration of the public schools and will likely not be seen as a desegregative tool.”) (footnotes omitted);Harvard Law Review Association, Unfulfilled Promises: School Finance Remedies and State Courts, 104 Harv. L. Rev. 1072, 1082 (1991) (“[C]oncerned parents often have availed themselves of a substitute good for the noncollective benefit, such as schools in costlier suburbs or private schools, thereby further diminishing the possibility for collective action.”).
Ryan, supra, at 282-83 (“Cities that have undergone city-only desegregation plans generally have also experienced greater degrees of white flight than have cities involved in a metropolitan-wide desegregation plan.Although the evidence concerning the precise degree of comparative white flight varies, one study indicates that city school districts lose up to twice the number of white students that countywide districts lose when desegregation plans are implemented.”) (footnotes omitted).
Shelby County, Ala. v. Holder, 133 S.Ct. 2612, 2634-35 (2013) (hereinafter Shelby County) (Ginsburg, J., dissenting).
Gallup Politics, U.S. Whites More Solidly Republican in Recent Years, (Mar. 24, 2014), http://www.gallup.com/poll/168059/whites-solidly-republican-recent-years.aspx.
See Brown, supra note 50, on how the market penalizes integration. As an example of how these public and private resegregation processes work to the detriment of the education of minority children, see Trymaine Lee, White school district sends black kids back to failed schools, MSNBC, June 25, 2014, (“Hundreds of mostly poor minority students who used a controversial Missouri law to transfer out of failing schools will be sent back to their home districts next school year, following a tense battle in the legislature and a slew of politically charged decisions by the department of education. The reversal puts the academic fate of some of the state’s most needy and disadvantaged students at risk. Last summer, the Missouri Supreme Court upheld an earlier ruling that allowed students from unaccredited school districts to transfer to better schools. Thousands of students from the African-American suburbs of St. Louis streamed across the border to much wealthier, white districts and better-performing schools closer to home. But the exodus triggered a number of unexpected consequences. The failing districts were financially responsible for paying all transfer-related expenses, including tuition and transportation costs. As a result, the transfers nearly crippled one school district in particular, the Normandy schools, which has paid about $10.4 million to a dozen different school districts. The costs for the Normandy district, which is about 97% black and whose student body is deeply impoverished, forced the legislature to appropriate supplemental funding to keep it afloat. Attempts by the legislature to tweak the law to alleviate some of the burdens placed on schools by the transfer law were stymied when Gov. Jay Nixon, a Democrat, threatened to veto a proposed bill. The legislature’s intransigence forced the issue back to the state board of education. The board recently voted to replace the Normandy School District with a new district, the Normandy Schools Collaborative, effective July 1. The new district includes the same boundaries and schools as the old district, but by changing its name, the district is now no longer unaccredited and therefore eligible under the transfer law. The decision to rebrand the district has offered a legal loophole to the districts that had reluctantly and begrudgingly accepted the minority transfers in the first place.”) available at http://thegrio.com/2014/06/25/white-school-district-sends-black-kids-back-to-failed-schools/
Voting Laws Roundup in 2013, December 19, 2013 , Brennan Center for Social Justice, New York University School of Law, available at http://www.brennancenter.org/analysis/election-2013-voting-laws-roundup. The racial animus behind these efforts has been highlighted. For public actor bias, see Mendez, Matthew S. and Grose, Christian R., Revealing Discriminatory Intent: Legislator Preferences, Voter Identification, and Responsiveness Bias (May 1, 2014). USC CLASS Research Paper No. 14-17 Available at SSRN: http://ssrn.com/abstract=2422596 and Christopher Ingraham, “Study finds strong evidence for discriminatory intent behind voter ID laws, ”Washington Post (June 3, 2014), available at http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/03/
study-finds-strong-evidence-for-discriminatory-intent-behind-voter-id-laws/; For a recent 56–year-old African-American experience in Ohio of the public and private actor bias and violence see, Benjamin G. Davis, Addressing Federalism and Separation of Powers Social Violence: The Ordinary Citizen Beyond Shelby County, North Carolina and Ohio and Voting Rights, Miss C. L. Law Review (Forthcoming 2014), May 1, 2014 draft version available at SSRN: http://ssrn.com/abstract=2451287 (“At the height of the lead up to the 2012 Presidential election, I was subjected to a type of non-physical violence – private social violence for want of a better term. It started at an August 25, 2012 True the Vote “Voter Integrity” Meeting at a Holiday Inn in Worthington, Ohio at which I was essentially the only person of color in the audience and subsequently continued over a few days. At the event, the sheer quantity of criticism of black leaders under the “race hustlers” meme by an African-American woman speaker was oppressive. Being threatened with removal and having security called on me after asking questions at the Q and A part of the event was intimidating. Finding out later that, due to the threat of hostile private individuals with guns in the room, some persons of good will in the audience felt impelled to call the police out of fear for my safety was disturbing. Being called a “coon” [Note for the CERD: an extremely old racial slur in the United States dating back to the pre-Civil War] and “faggot” [Note for the CERD: an extremely old sexual orientation slur used in an intersectional way] in front of my son was shocking. All was not bad, and in fact several persons were genuinely welcoming. I learned at the True the Vote meeting of the “voter integrity” methods being used by the group through statistical voter roll purging, private poll observers challenging voters at the polls, the bringing of lawsuits to purge rolls, and the encouragement of law changes such as voter ID that increase the burdens on ordinary citizens seeking to vote. All of these actions appeared to be perfectly permissible by private citizens. But, overall, various messages of unwelcome were directed at me over the day leaving my son and me exhausted by the end. The harassment continued over the next days as a blog post excoriated me and private citizens took it upon themselves to communicate to the Dean of my Law School their displeasure with me notwithstanding that I had been at the True the Vote meeting in my private capacity. Discussion of me even rose to the level of the margins of the state university where I am employed Board of Directors meeting demonstrating at least to me the virulence of the animosity toward me of some in that True the Vote meeting room. All of these persons were of course ordinary citizens and none of them actually inflicted any physical violence on me. However, the experience of spiritual violence was persistent, aggressive, debilitating and, as a result, deeply troubling.”)
68 Wendy R. Weiser and, Erik Opsal, The State of Voting 2014, Brennan Center for Justice, June 17, 2014, available at http://www.brennancenter.org/analysis/state-voting-2014
70 Id. (Footnotes omitted)
71 Article 21. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
* * *
72 Article 6States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
73 Shelby County, supra note 64, at 2634-35 (2013) (Ginsburg, J., dissenting).
74 Noah Millman, Is Racial Polarization In Voting Increasing Or Decreasing?, The American Conservative (Apr. 2, 2014), http://www.theamericanconservative.com/millman/is-racial-polarization-in-voting-increasing-or-decreasing/.
75 Id. As noted in a June 26, 2014 PEW Research Center study, American attitudes on special measures (affirmative action) overall are favorable (“Broad Support for Affirmative Action Programs: Percent who say affirmative action programs to increase black and minority students on college campuses are a good thing 63 percent vs. a bad thing 30 percent (page 51).”) But, the polarization on this issue is along political party leanings (Democrat or Republican) as well as race. (“The Democratically-oriented groups are largely in agreement, however, when it comes to the practice of affirmative action in college admissions. Majorities say it’s a good thing to have affirmative action programs “designed to increase number of black and minority students on college campuses.” A vast majority of Solid Liberals believe in the merits of college affirmative action (87%), as do at least seven-in-ten of those in the three Democratic-leaning groups. The Young Outsiders also are mostly supportive of campus affirmative action: 62% say it’s a good thing and just 33% say it’s a bad thing. Steadfast Conservatives and Business Conservatives (Note to the CERD: 85 to 87 percent white and 84 to 86 percent are Republican or lean Republican (page 101 (Business Conservatives) and page 99 (Steadfast Conservatives) respectively)), meanwhile, think these programs are a bad thing by a two-to-one margin (60%-31% and 60%-30%, respectively).”) Beyond Red vs. Blue: The Political Typology, Fragmented Center Poses Election Challenges for Both Parties 51,99, and 101, Pew Research Center, (June 2014) available at http://www.people-press.org/files/2014/06/6-26-14-Political-Typology-release.pdf”
76 Gallup Politics, supra note 65.
78 152 Cong. Rec. H5207 (daily ed. July 13, 2006).
79 52 Cong. Rec. S8012 (daily ed. July 20, 2006).
80 David Stout, House Votes to Renew Voting Rights Act, N.Y. Times, July 13, 2006, http://www.nytimes.com/2006/07/13/washington/13cnd-vote.html.
81 See id.
82 60 U.S. 393 (1857).
83 U.S. Const. art. IV, § 2.
84 James Blacksher & Lani Guinier, Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder, 8 Harv. L. & Pol’y Rev. 40, 40 (2014).
85 Shelby County, supra note 64. The Supreme Court majority’s reinvigoration of the pre-Civil War “equal sovereignty” for states “tradition” to the detriment of minority voting rights harkens back to its ante-bellum and discredited jurisprudence in the Dred Scott case – disenfranchising blacks at that time. See generally James Uriah Blacksher & Lani Guinier, supra.
86 A poignant description of the oppression being visited on racial minorities is described by a former US Secretary of Labor , Robert Reich, “Voting in Mississippi, 2014 and 1964”, Robert Reich’s blog ((June 7, 2014), available at http://readersupportednews.org/opinion2/277-75/24104-voting-in-mississippi-2014-and-1964. This oppression is the direct result of the Shelby County decision.
87 The school to prison pipeline by which racial minorities are subject to higher rates of discipline, investigation, arrest, prosecution and conviction and punishment at each step of the criminal justice process than equivalent majority counterparts is a structural concern. See generally, Michelle Alexander, The New Jim Crow, Mass Incarceration in the Age of Color Blindness 153-156 (The New Press 2010); and America’s Cradle to Prison Pipeline, A Report of the Children’s Defense Fund, (October 2007) available at http://www.childrensdefense.org/child-research-data-publications/data/cradle-prison-pipeline-report-2007-full-lowres.pdf (“A Black boy born in 2001 has a 1 in 3 chance of going to prison in his lifetime; aBlack girl has a 1 in 17 chance. A Latino boy born in 2001 has a 1 in 6 chance of
going to prison in his lifetime; a Latino girl has a 1 in 45 chance.”” Black juveniles are about four times as likely as their White peers to be incarcerated. Black youths are almost five times as likely to be incarcerated as White
youths for drug offenses.”” Of the 1.5 million children with an incarcerated parent in 1999, Black children
were nearly nine times as likely to have an incarcerated parent as White children; Latino children were three times as likely as White children to have an incarcerated parent.”) Id. at 16-17. Contrast these direct and collateral consequences, with the solicitude given to vastly more significant criminality such as that of banks and their officers. See Gregory M. Gilchrist, The Special Problem of Banks and Crime, 85 Col. L. Rev. 1, 4-5 (Winter 2014) (“This Article contends that the recent non-prosecutions of banks and bankers in the face of serious criminal violations may be justified, but that it still represents a problem for the criminal justice system.” noting the deterrence and expressive failures in these non-prosecutions). Just like the silencing through collateral consequences on voting rights of felons in some states, other systemic concern merit reflection. Current Attorney General, “[Holder] has argued that, ‘with an outsized, unnecessarily large prison population, we need to ensure that
incarceration is used to punish, deter, and rehabilitate—not merely to warehouse and forget,’” cited in Jelani Jefferson Exum, Forget Sentencing Equality: Moving From The “Cracked” Cocaine Debate Toward Particular